2010 (2) TMI 1275

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....r called as "the Act") for annulment of marriage before a competent Court at Gurgaon. The respondent-wife, Smt. Rohini Goel filed a petition under Section 12 r/w Section 23 of the Domestic Violence Act, 2005 before the competent Court at Delhi. An FIR was also lodged by her against petitioner-husband and his family members under Sections 498-A, 406 and 34 of Indian Penal Code, 1860 at PS Janakpuri, New Delhi. 2. It is stated at the Bar that by persuasion of the family members and friends, the parties entered into a compromise and prepared a Memorandum of Understanding dated 13.11.2009 in the proceedings pending before the Mediation Centre, Delhi by which they agreed on terms and conditions incorporated therein, to settle all their disputes and also for dissolution of their marriage. The parties filed an application under Section 13-B(1) of the Act before the Family Court, i.e. ADJ-04 (West) Delhi seeking divorce by mutual consent. The said HMA No.456 of 2009 came before the Court and it recorded the statement of parties on 16.11.2009. The parties moved another HMA No. 457 of 2009 to waive the statutory period of six months in filing the second petition. However, the Court reject....

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.... that exceptional and special circumstances exist that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity warranting review of the decision appealed against, such exercise should not be done. The power under Article 136 cannot be used to short circuit the legal procedure prescribed in overriding power. This Court generally does not permit a party to by-pass the normal procedure of appeal or reference to the High Court unless a question of principle of great importance arises. It has to be exercised exceptionally and with caution and only in such an extra- ordinary situations. More so, such power is to be exercised taking into consideration the well established principles which govern the exercise of overriding constitutional powers (vide Dhakeswari Cotton Mills Ltd. v. Commissioner of Income Tax, West Bengal AIR 1955 SC 65; The Union of India v. Kishorilal Gupta & Bros. AIR 1959 SC 1362; Murtaza & Sons & Anr. v. Nazir Mohd. Khan & Ors. AIR 1970 SC 668; Sirpur Paper Mills Ltd. v. Commissioner of Wealth Tax, Hyderabad AIR 1970 SC 1520; The Municipal Corporation, Bhopal v. Misbahul Hasan & Ors. AIR 1972 SC 892; Delhi Jud....

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.... 2008 SC 3093. However, these are the cases, where this Court came to rescue the parties on the ground for divorce not provided for by the legislature in the statute. 7. In Anjana Kishore v. Puneet Kishore (2002) 10 SCC 194, this Court while allowing a transfer petition directed the court concerned to decide the case of divorce by mutual consent, ignoring the statutory requirement of moving the motion after expiry of the period of six months under Section 13- B(2) of the Act. 8. In Anil Kumar Jain (supra), this Court held that an order of waiving the statutory requirements can be passed only by this Court in exercise of its powers under Article 142 of the Constitution. The said power is not vested with any other court. 9. However, we have also noticed various judgments of this Court taking a contrary view to the effect that in case the legal ground for grant of divorce is missing, exercising such power tantamounts to legislation and thus transgression of the powers of the legislature, which is not permissible in law (vide Chetan Dass v. Kamla Devi AIR 2001 SC 1709; and Vishnu Dutt Sharma v. Manju Sharma (2009) 6 SCC 379). 10. Generally, no Court has competence to iss....

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....ates (P) Ltd. v. UT. Chandigarh (2004) 2 SCC 130, this Court held as under:  "36..... sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. ... despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order which would be in contravention of a statutory provision." 14. In Laxmidas Morarji (dead) by L.Rs. v. Behrose Darab Madan (2009) 10 SCC 425, while dealing with the provisions of Article 142 of the Constitution, this Court has held as under: " ....The power under Article 142 of the Constitution is a constitutional power and hence, not restricted by statutory enactments. Though the Supreme Court would not pass any order under Article 142 of the Constitution which would amount to supplanting substantive law applicable or ignoring express statutory provisions dealing with the subject, at the same time these constitutional powers cannot in any way, be controlled by any statutory provisions. However, it is to be made clear that this power cannot be used to supplant the law ap....